I recently came across a few stories about a gay male couple seeking access to surrogacy services in Israel. Itai Pinkus and Yoav Arad were married in Canada. In February they petitioned the Israeli high court to allow them to use surrogacy in Israel. It seems that under current law, surrogacy is available, but only to a male/female couple.
Because surrogacy is already permissible in Israel, the petition by Pinkus and Arad raises a fairly narrow question–is it permissible to limit surrogacy to different sex couples? The broader questions about the propriety of surrogacy generally aren’t at raised here. Instead, the most obvious questions raised are those about desirability of father/father families–what I have recently discussed as motherless families.
In response, the government has suggested that this is a matter better decided by the Knesset (the legislative body) than the courts. I think I’ve touched on this question–who should decide–in the past, but I cannot find quite where. Generally speaking where an individual couple seeks particular treatment, as is the case here, it’s likely to be presented by the couple as a demand for fair treatment. As such, it’s often seen (perhaps particularly in the US) as a proper question for a court.
If instead you frame the question as one of broad social policy–should surrogacy be allowed, say, or should it only be allowed under particular circumstances–then it looks like a question of general policy. Those sorts of questions are generally understood to be more appropriately by a legislative body rather than a court. (I should qualify this by noting that I’m really speaking from my knowledge of the US framework. I not sure the same is true in Israel, though I suspect it is.)
Each way of framing the problem is reasonable. But when, as is often the case here in the US, the legislative body does not act to decide the broad policy question one way or the other, the courts often will step in. After all, the question of individual fairness remains unresolved, and those sorts of individualized questions are well within the province of the courts.
I don’t know if the government’s filing suggests that it is ready to propose some general guidelines that would address (one way or another) the gay male couple question. It’s also possible that suggesting that this is a legislative question is just a way of ducking the harder questions.
As far as I can tell, nothing further has occurred in Israel. I’ll try to keep an eye on this case though.
There are a couple of other points worth noting–one you’ll find if you read down through the Jewish Daily Forward story. First, for many people whether a child is Jewish depends on the religion of the mother. In surrogacy, of course, there can be two candidates for mother–the woman who gives birth or the woman with the genetic connection. It seems it isn’t clear which woman’s identity counts for purposes of determining religion.
Second, this entire discussion takes place against the backdrop of a globalized fertility industry. Thus, if they paid enough, the two men could get an egg from a US woman, have it fertilized and then transferred to a surrogate in India. While Israel might decide that the men are not entitled to access to surrogacy at home, it can hardly close down the international option. Of course, that will only be available to a small number of wealthy couples. Were I going to limit access to surrogacy, I wouldn’t do it on that basis.